Dispute resolution at a distance
By Ricky Cella
Remote hearing capabilities are accelerating to meet the pandemic challenges, says Ricky Cella
The covid-19 outbreak has drastically changed the way individuals, businesses and entire industries operate in a short space of time. The business of dispute resolution and the administration of justice have not been immune to these developments. Clients, litigators, alternative dispute resolution (ADR) providers and HM Courts and Tribunals Service (HMCTS) have all rapidly increased their remote working and hearings capabilities.
In many cases, the adoption of new technology and different ways of working will have a lasting effect. Existing plans have been accelerated and new approaches identified, and accepted, because of the challenges presented by covid-19. Courts and tribunals In March, HMCTS, the UK LawTech Delivery Panel and the Society of Computers and Law launched Remote Courts Worldwide (RCW). RCW’s stated aim is to help accelerate the transformation of court services across the globe.
It acknowledges that courts in jurisdictions around the world are struggling with the challenges of shifting to remote hearings. At its heart, the initiative intends to collate experiences and best-practices from judiciary, court staff, legal practitioners and court technologists.
Prior to the covid-19 outbreak, different courts had embraced technology and innovation to different degrees and with different levels of success. Some specialist tribunals, such as the Trade Mark Registry’s tribunal section, have successfully used remote hearing technology for some time.
However, most hearings have been conducted in physical court buildings and hearing centres. It is, therefore, understandable that the move towards remote hearings presents major challenges.
The most obvious challenges faced by HMCTS are technological – it needs the right hardware and software. Even so, technical limitations (either on the part of the court or the parties) will still arise and impact on the administration of justice. At the very least, failures could cause delays and adjournments.
Redundancies will therefore need to be built into the court systems, and allowances into timetables, to mitigate and account for these issues. There will also be a substantial cost in upgrading systems, training staff and implementing adequate cyber security measures.
The move away from hearings in physical buildings also means grappling with the challenge of upholding the principle of open justice. Measures have already been introduced to broadcast hearings in court buildings and or to record hearings; but these are not entirely satisfactory and there is an acknowledgment from the judiciary that there will be some derogation from the principle of open justice, at least in the short term.
However, in the medium to long-term the ability to instantly share hearings conducted by video with the public and the media could greatly increase the openness of the justice system. The live-streaming of selected Court of Appeal and Supreme Court decisions has already demonstrated this.
Many firms had robust remote working systems and policies in place before the covid-19 outbreak. However, it has undoubtedly been a catalyst for firms ramping up their capabilities and reviewing internal policies on home and flexible working. Firms have had to adjust their working culture and practices to ensure proper oversight, risk management and continued quality of service to clients.
An even greater challenge is balancing those changes with the continued wellbeing of the firms’ staff where interactions are necessarily undertaken remotely. The radical changes prompted by the pandemic should prompt firms to re-evaluate their use of technology and how they operate, even after the return to normality.
Elsewhere in society, the covid-19 outbreak is likely to accelerate widespread automation in manufacturing, retail and other industries that will require greater insulation from future shutdowns. In professional service firms, there will be increased scrutiny regarding the necessity and value of office space, the cost and time of travelling and the requirements for office support functions.
One area that illustrates the acceleration and acceptance of different ways of working is the field of ADR. Various ADR providers have adopted practices which allow the relevant processes to be conducted remotely.
This gives parties the opportunity to resolve their disputes through ADR where litigation is not an immediate option; and which (absent those innovations) they would not otherwise have been able to pursue due to the constraints on physical meetings.
The idea of remote mediations is nothing new and will be familiar to many. HMCTS has offered a free telephone mediation service to parties on the small claims track for a number of years.
Telephone mediations have also been used regularly where the parties were unable to be physically in the same location at the same time for practical reasons. The main change now is that remote mediations in the current circumstances are the norm – and a necessity in the majority of cases.
Remote mediations operate in substantially the same way as traditional mediations. Most professional video-conferencing platforms being used by mediators have multiple or breakout room functionality. The mediator can therefore ferry between the parties, attempting to bring them towards a compromise and arrange plenary and joint sessions between the parties and or their representatives.
There are inevitably additional challenges to overcome. Practitioners must think carefully about whether the specific video-conferencing service being used ensures the protection of confidential information. Cyber threats should also be given proper consideration, particularly if practitioners and clients are using their own hardware, software and network connections to participate.
Remote mediations cannot match the traditional face-to-face setting in every aspect. Technology cannot currently replicate the benefits of physically being in the same room as other people. For example, it is more difficult for the mediator to get a feel for the parties’ personalities; and the parties may not feel the imperative to settle quite as strongly.
That said, remote mediations present opportunities to improve existing practises. The process can be less burdensome for a client as they can be set up at home or at their place of work and not lose an entire day (or more) at an external mediation venue.
This opens up opportunities for mediations to be arranged more easily, quickly, at a lower cost and, potentially, at an earlier stage. With the current difficulties of litigation for practitioners, remote mediations also provide scope to maintain and develop their practice in alternative ways.
Dispute resolution and the administration of justice is a fundamental pillar of our society and cannot be put entirely on hold. Businesses involved in dispute resolution also need to continue generating revenue.
The covid-19 outbreak has required courts and legal practitioners to accelerate their adoption of technologies that permit remote working and hearings. This has presented challenges, both technical and in terms of organisational risk and management, however it also presents opportunities for those prepared to innovate.
It seems likely that the pandemic outbreak will be viewed as a catalyst for lasting changes to how firms operate and how disputes are resolved. Indeed, the benefits of resolving disputes at a distance will remain even after things return to normal.
It is likely that the investment being made now in technology, and exploring new ways of operating, will continue to pay dividends long into the future.
Ricky Cella is an associate solicitor at Russell Cooke russell-cooke.co.uk